Lawsuit Challenges NYPD’s Policy of Unlawfully Keeping People’s Cash and Property

The Bronx Defenders Seeks Class Cert. in Property Retrieval Suit

June 3rd, 2016, New York – The Bronx Defenders filed an amended complaint today in Encarnacion v. City of New York, and will ask a federal judge to grant class certification in their lawsuit challenging the NYPD’s unconstitutional practice of retaining people’s property without due process after their cases are over.

Plaintiffs, including The Bronx Defenders, allege that the NYPD’s policy affects thousands of New Yorkers and asks the court to order new policies that ensure the NYPD properly releases personal property back to its rightful owners. Plaintiffs are represented by The Bronx Defenders and Boies, Schiller & Flexner LLP.

“We often represent low-income people whose phones and cash wages have been confiscated and spend months trying to get their money back after their case is over,” said Molly Kovel, legal director of the Civil Action Practice at The Bronx Defenders. “For people without access to an attorney, the hurdles they face to get their property back are simply too high, and they often give up. We hope this case leads to much-needed reform.”

The NYPD regularly seizes cash, cellphones, and other property during arrests. Property that is not contraband should be returned to the individual when the case is dismissed or terminated unless the District Attorney’s Office can establish that the valuables are still needed as evidence for an appeal or another proceeding.

Under the City’s current policy, a person seeking to retrieve his or her property after a case is over must first obtain a release from the District Attorney’s Office stating that the property is no longer needed as “Arrest Evidence.” If the person cannot obtain that document within 270 days of submitting a request to the NYPD property clerk, the department gets to keep the property. According to the suit, the DA’s office routinely fails to respond to requests for releases.

“Once a criminal case is over, the U.S. Constitution does not permit the City to withhold someone’s personal property without justification,” said Eric Brenner, a partner at Boies, Schiller & Flexner LLP. “This City’s current policies violate the basic rights of individuals who need the cash and phones that the City is refusing to return.”

The NYPD gives millions of dollars a year to the City’s General Fund that appear to be from unclaimed cash and property seized pursuant to an arrest.

Victor Encarnacion, one of the named plaintiffs in the suit, spent over a year after his case was dismissed trying to get his personal property back from the NYPD, which included wages in cash from his plumbing job. The DA’s Office failed to respond to several requests for a release and the NYPD did not provide an alternate recourse.

According to the suit, Mr. Encarnacion is one of the many people whose rights are being violated by the NYPD’s current policy and practice of civil forfeiture. If granted, the class would include any individuals who have been, or will be, unable to secure the release of non-contraband personal property seized in connection with an arrest held by the NYPD Property Clerk, where (i) the individual named on the voucher can no longer be tried on any charge that was the original basis for the arrest, and (ii) the City has made no showing of any continued basis to retain the property.

The complaint amends a suit filed by The Bronx Defenders in January of 2016 in the Southern District of New York in Manhattan.

The amended complaint is available here.